[Eads v. State continuedReturn to pages 946-949.Currently at pages 950-951.]

[paragraph continued from previous page] The evidence offered would be clearly incompetent upon examination in chief, and its competency upon redirect examination would depend upon whether it was germane to and had a tendency to clear up and explain the witness' testimony given upon cross-examination. The right and duty of an attorney regularly retained in a case to see his client's witnesses and ascertain what they know about the controversy is plain. An attorney would be derelict who failed to inform himself in this respect. Section 788, Wigmore on Ev. It is only when it is sought to show an actual fraudulent conference, an attempt to corrupt or to influence a witness to color his testimony or to testify falsely or to avoid the service of process or to do anything that would have a tendency to defeat justice, that what occurs between an attorney and his client's witnesses becomes material. The state did not attempt to go into any such matter upon cross-examination further than to show what the law exacts of an attorney as his duty to himself, the court, and his client, viz., to prepare for the intelligent presentation of his client's cause upon the trial. Counsel thinks the evidence was proper as rebutting an inference which the jury might draw from the evidence given on cross-examination that he, as representing the defendant, was coaching the witness and trying to build up and manufacture evidence for the defense. We cannot assume that the jury was misled by the question, or that the defendant was prejudiced thereby. The question was not objected to, nor had the jury any right upon the evidence to draw such inference. If the defendant thought that the jury would be misled by the testimony in this respect, he no doubt could have obviated the matter by the preparation and presentation of a proper instruction to be given by the court covering that phase of the case.

5. Upon cross-examination by defendant's counsel, it was sought to discredit one Fedders, who was sworn and testified as a witness on behalf of the state, by questions and by offering to show by the witness for the purpose of affecting his credibility that he had been arrested for shooting a man in a house of prostitution at Thermopolis in January, 1908. The evidence proffered was collateral to the issue, and, unless it clearly tended to discredit the witness, it should not be received. Inquiry may be made as to specific instances of recent but not remote misconduct of a witness upon cross-examination of such witness within proper limits for the purpose of affecting his credibility. In such a case his answers preclude further inquiry; in other words, extrinsic evidence of such collateral matter is not permissible. The right and limits of such cross-examination, when relevant on the subject of bad character, rests largely in the discretion of the trial court. Sections 981, 987, Wigmore on Ev. That he had been arrested for shooting a man in a bawdy house did not of itself establish the fact that the witness was in or was a frequenter of or dwelt in the atmosphere of a bawdy house. It was nothing more than an accusation of crime. State v. Greenburg, 59 Kan. 404, 53 Pac. 61. What the state did in the matter of the charge as contained in the offer did not prove or tend to prove the charge upon which the witness was arrested, if at all. The witness was not asked what he had done, but what the state had done. In Nolan v. Brooklyn City & N. R. R. Co., 87 N.Y. 68, 41 Am. Rep. 345, the witness was asked, not what he had done, but what the fire department had done, whether it had expelled him. The question was held improper. The Court of Appeals of that state, in People v. Irving, 95 N.Y. 541, say: "We have held of late that mere charges or accusations, or even indictments, may not be so inquired into since they are consistent with innocence, and may exist without moral delinquency. People v. Crapo, 76 N.Y. 288, 32 Am. Rep. 302; People v. Brown, 72 N.Y. 571, 28 Am. Rep. 183; Ryan v. People, 79 N.Y. 594." In People v. Casey, 72 N.Y. 393, the prisoner was indicted for an assault with a dangerous weapon and testified in his own behalf. On cross-examination the prosecutor was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed, and it was held no error. The court say, in commenting on that case in People v. Irving, supra: "Facts were asked for there and not accusations or irresponsible charges." In Ryan v. People, supra, it was held that an indictment was a mere accusation and had no legitimate tendency to discredit a witness or impeach his moral character. We are aware that the decisions are in hopeless conflict upon this question. The rule, however, followed by the Court of Appeals of New York as above set forth, is the one which commends itself to us as sound in principle. We think in all such cases the fact of misconduct of the witness, and not what the state or others have done in the way of mere accusations or by way of arrest, is a matter of legitimate inquiry within the limits of a sound discretion of the trial court. Whether the witness can refuse to answer any question with reference thereto under a claim of personal privilege is a matter which is not here presented.

Following the foregoing offer of proof, the defendant's counsel asked the same witness on cross-examination as follows: "You were arrested at the same time for carrying concealed weapons and convicted in justice court at Thermopolis, Wyo.?" The question was objected to on the ground that it was not a proper question to ask the witness, as it did not purport to call for proof of a felony. The objection was sustained and the defendant excepted. Thereupon defendant made offer of proof as follows: "Defendant offers to prove on cross-examination of this witness that he was convicted in justice court at (p.951)Thermopolis, Wyo., for the offense of carrying concealed weapons, and growing out of the transaction of shooting in a house of prostitution heretofore mentioned in one of the preceding questions." The offer was objected to as immaterial, irrelevant, and incompetent. The objection was sustained and exception noted. This offer refers to and must be construed in connection with a preceding question, if any, in which the transaction of shooting a man in a house of prostitution is referred to. The place of the occurrence of such shooting is not mentioned or referred to as a house of prostitution in any preceding question as shown by the record. It is true that in contending for a right to propound a former question there was an offer to prove that this witness was arrested for shooting a man in such a place; but, as already stated, such fact constituted nothing more than a mere accusation. The present offer refers to a question not found in the examination of this witness, nor was any question propounded to him to which the latter part of the offer, either alone or in connection with the former offer, would be responsive; nor was it a clear and definite offer as affecting credibility to prove that the offense of carrying concealed weapons for which conviction was had was committed at the time and place of such alleged shooting, or that the shooting was the result of carrying concealed weapons. In this connection it may be said that it is lawful to carry an unconcealed weapon for a lawful purpose. By reference to the former question and offer, the time of the arrest for the misdemeanor was some time in January, and at the time he was arrested for the shooting presumably at a subsequent time to such shooting. The record is silent as to whether such arrest was made in a house of prostitution, and the offer does not purport to prove that he was arrested in such a place. "Growing out of a transaction" does not necessarily mean a part of such transaction either in point of time or place as to a subsequent act. Upon this condition of the record, it cannot be said that the defendant had put himself in a position to entitle him to an affirmative ruling with reference to this part of the offer.

We come now to the question as to whether the proffered evidence was competent for the purpose of discrediting the witness. In discussing the question of what crimes the conviction of which are relevant to indicate bad character as to credibility, it is stated in Wigmore, § 980, that: "If in a given jurisdiction general bad character is allowable for impeachment, then any offense will serve to indicate such bad character. If character for veracity only is allowable for impeachment, then only such specific offenses may be used as indicate a lack of veracity-character." In this jurisdiction the question is not regulated by statute, and it has never been judicially determined as to whether impeachment of a witness may extend to general bad character or must be confined to his character for truth and veracity, nor do we deem it necessary to here decide that question.

A misdemeanor is not an infamous crime, nor does it always involve moral turpitude or lack of veracity in the perpetrator. It seems to us that the evidence, to be competent and relevant to discredit the witness, should at least tend to prove moral turpitude or a lack of veracity. The crime of carrying concealed weapons imputes neither, and, if it be conceded that proof of a conviction therefor was technically admissible under the first rule as above stated by Wigmore, then it follows as a corollary that its rejection, though erroneous, was not prejudicial. It is for material and prejudicial, and not harmless, error that this court is authorized to reverse a judgment. Section 3744, Rev. St. 1899. It is conceded that the evidence is sufficient to support the verdict.